Citations
- 584 F. Supp. 525
Full opinion text
HAUK, Chief Judge.
ORDER FINDING DEFENDANT DONN IN CONTEMPT OF COURT AND COMMITMENT ORDER
On the 25th day of January, 1982, the Court finds and holds Aron Edward Donn in contempt of Court; the defendant was present with appointed counsel, Michael S. Mink; the United States of America was represented by John D. Robertson, Assistant United States Attorney.
Despite warnings and admonitions of the Court, defendant Donn engaged in at least four loud and boisterous vocal outbursts defying the Court and interrupting the Court in rendering its Findings of Fact, Conclusions of Law and Order in the Evidentiary Hearing conducted pursuant to the Decision and Mandate of the Court of Appeals, Ninth Circuit, Case No. 80-5616, dated November 19, 1981, 661 F.2d 820 (9th Cir.1981). Since defendant Donn persisted in his contemptible conduct despite the warnings of the Court, and so misbehaved that in the presence of the Court he, Donn, outrageously obstructed the administration of justice, the Court finds said Donn in contempt of Court and he is ordered to be sentenced to a term of six months, all as appears conclusively in the transcript of Evidentiary Hearing, et al., January 25, 1982, which is hereby incorporated herein and made part hereof.
EVIDENTIARY HEARING PURSUANT TO DECISION AND MANDATE OF COURT OF APPEALS, NINTH CIRCUIT, CASE NO. 80-5616, DATED NOVEMBER 19,1981; FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER THAT DEFENDANT RECEIVED EFFECTIVE AND MORE THAN ADEQUATE ASSISTANCE OF COUNSEL, AND THAT DISTRICT . COURT JUDGMENT HEREIN OF JANUARY 15, 1979, VACATED BY SAID DECISION AND MANDATE OF COURT OF APPEALS, NINTH CIRCUIT, IS HEREBY REINSTATED IN TOTO BY REASON OF AFORESAID EVIDENTIARY HEARING, FINDINGS AND CONCLUSIONS
ORDER FINDING DEFENDANT DONN IN CONTEMPT OF COURT AND COMMITMENT ORDER
REPORTER’S TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For the Plaintiff:
JOHN ROBERTSON
Assistant U.S. Attorney
For the Defendant:
MICHAEL S. MINK
Also Present:
ARON EDWARD DONN
JAN L. HANDZLIK
LOS ANGELES, CALIFORNIA, MONDAY, JANUARY 25,
1982; 10:00 A.M.
THE CLERK: No. 4 on the calendar, CR 78-1028, United States of America versus Aron Edward Donn. Appearances, counsel.
MR. ROBERTSON: Good morning, your Honor. John Robertson appearing on behalf of the government.
MR. MINK: Michael Mink appearing on behalf of the defendant.
THE COURT: All right. Here is another one up for filing and spreading, affirming the judgment but remanding it to vacate the award of attorney’s fees. ,1 don’t understand what they are doing up there, but I have to follow it. Wait a minute. Am I looking at the right one, No. 3?
MR. MINK: No. 4, your Honor.
THE COURT: Oh, sorry. I just did that, No. 3. I thought .it was No. 2. All right. So it’s No. 4. That’s different. That’s appearing for filing and spreading of the judgment, affirming the judgment in part, it says, and reversing and remanding in part.
Now, all I can do at this time, of course, is file and spread the judgment. Any objection?
MR. ROBERTSON: No objection.
MR. MINK: No objection, your Honor.
THE COURT: All right. Ordered filed and spread.
Now, what do we do about this hearing? I’m ready to proceed with the evidentiary hearing.
MR. ROBERTSON: Your Honor, before we proceed, I have a suggestion to make. In December, or as soon as I received notice of this judgment coming down from the Ninth Circuit, what I had done at that time was I had written a memo to Ira Newlander, who I believe was the Court’s court reporter at that time, and in that memo, I had asked Mr. Newlander to prepare a transcription of the guilty plea and of the sentencing of Mr. Donn, and that was for several reasons, among which were that I felt that were we in possession of that transcript, perhaps we would be able to tell whether or not certain defenses were, in fact discussed with Mr. Donn and whether those defenses were put on the record at the time of the entry of the guilty plea.
THE COURT: Who have we got here for the defendant? Mr. Mink?
MR. MINK: Yes, your Honor.
THE COURT: Where is Mr. Handzlik?
MR. ROBERTSON: Mr. Handzlik is present in the courtroom.
MR. HANDZLIK: Here, your Honor.
THE COURT: You better step up, because it charges you with misconduct, as you know, or at least inappropriate action.
MR. HANDZLIK: Yes, your Honor.
THE COURT: And Mr. Mink was the one who filed the brief and so charged—
MR. ROBERTSON: I would like to continue just briefly, your Honor. I felt that the transcript—
THE COURT: —representing Mr. Donn on appeal.
MR. ROBERTSON: I felt that a transcription of the guilty plea would be able to shed light on whether or not those defenses were in fact discussed with Mr. Donn by Mr. Handzlik. Furthermore, I felt a transcription of the sentencing may in some manner shed some light on whether or not—
THE COURT: I don’t know if that’s necessary. We can take the evidence of Mr. Handzlik, what he did, what he didn’t do, and the evidence that Mr. Donn wants to present or Mr. Mink wants to present for Mr. Donn. Mr. Mink, you are going to stay in as his attorney. No way can you get out. You are in.
MR. MINK: Yes, your Honor.
THE COURT: Then we will hear what Mr. Handzlik did. We will hear what Mr. Donn did. And those are the two main principals. What do we have to hear what I said or what anybody else said at the sentencing? The first question, as I see it, is whether or not Mr. Handzlik showed the defendant the presentence report. The second question is whether after seeing the presentence report, he had an opportunity — and we can get his testimony right here in court. He’s here. I will just put him on the stand and get his testimony as to whether he saw it, what he objected to, and why didn’t he speak up or why didn’t Mr. Handzlik speak up, if he mentioned it to Mr. Handzlik. None of that will show in the transcription of the hearing. But why haven’t you received the transcript by now? Is Mr. Newlander fooling around?
MR. ROBERTSON: I don’t know, your Honor. My secretary is checking on that as of Friday. What may have happened is perhaps Mr. Newlander didn’t get the communication or perhaps he’s working on it now.
THE COURT: We can find out. I will order him into court. If he doesn’t show, I will issue a bench warrant for his arrest. We will get him in. We are going to hold a hearing today. We are not going to fool around with this thing. I think the best thing to do is put it on for 1:30 this afternoon. In the meantime, you get ahold of Mr. Newlander and tell him I want him to come in and read that transcript. He doesn’t have to prepare it. He can read his notes. And I want Mr. Handzlik here and I want Mr. Donn here and I want Mr. Mink here and I want you here and, also, the probation officer. I want you all here at 1:30.
Now, in the meantime, you call Newlander and tell him I want him here at 1:30. If you have any obstreperousness from him or refusal to do.so or you can’t-reach him, let me know, because I will issue a bench warrant for his arrest, and you tell him so.
MR. ROBERTSON: Your Honor, I think maybe it’s perhaps that he just didn’t get the communication.
THE COURT: I don’t care what it is. You tell him that if he isn’t here at 1:30, a bench warrant for his arrest will be issued, and we will wait until they drag him in.
MR. ROBERTSON: Very well, your Honor.
THE COURT: I want him here to read it. He will read that, and then, Mr. Handzlik, I hope you are ready to testify as to your part in the thing and Mr. Donn is ready to testify as to his part, Mr. Mink.
MR. MINK: Yes, your Honor.
THE COURT: Because it’s the only way to handle it. No sense fooling around. We have got Mr. Donn here. He’s been brought some distance. I don’t know from where, but he’s been brought some distance.
MR. MINK: Terminal Island, your Hon- or.
THE COURT: From Terminal Island. All right. But no use in going through it twice. We will do it at 1:30. So ordered. And if you have any trouble — Well, we will do this. I will have my law clerk follow up on it. You follow up on it and call Mr. Newlander and tell him to be here at 1:30. So ordered. He’s a former court reporter for the Court. Miss Reporter, you also call Mr. Newlander and tell him I am not kidding, that I want him here at 1:30. You know how to reach him.
THE COURT REPORTER: Yes.
THE COURT: That ought to be enough, but if it takes more, let me know forthwith, because I will issue a bench warrant and we will get it out right away.
(Recess.)
LOS ANGELES, CALIFORNIA, MONDAY, JANUARY 25, 1982; 1:40 P.M.
THE COURT: Now we will take up this matter of U.S.A. versus Donn, No. 78-1028. Judge Curtis is going to use the courtroom to take a jury verdict, so when we hear from him, we will take a short recess so he can take the jury verdict.
Let the record show that Mr. Donn is present, Mr. Donn’s attorney, Mr. Mink, is present, and Mr. Robertson, the Assistant U.S. Attorney is present, along with the probation officer, Mr. Hutson.
I have asked also Mr. Ira Newlander to come to court with his notes, because there has been no transcript prepared, apparently, of the time of sentencing in this case, which was on January 15, 1979.
MR. ROBERTSON: Your Honor, excuse me. There has been a transcript prepared of the sentencing, which apparently was transcribed this morning. There has not been prepared a transcription of the guilty plea; however, Mr. Newlander is here with his notes of the guilty plea.
THE COURT: That’s what I wish him to read, read all of his notes, either that or, if you can, read a portion of them, then say that the transcription is the rest of what took place at the time of the sentencing on January 15, 1979. That will satisfy me.
MR. NEWLANDER: Your Honor, I have given copies of the transcript of the sentencing proceedings to all counsel.
THE COURT: And has counsel for the defendant showed it to the defendant?
MR. MINK: Yes, your Honor, I have.
THE COURT: Has he read it?
MR. MINK: I believe so.
Did you read it?
THE DEFENDANT: Yes.
THE COURT: Does he understand it?
THE DEFENDANT: Yes.
THE COURT: All right. Mr. Newlander, will you take the stand and be sworn, then we will see what you can add to the transcript.
IRA NEWLANDER,
called as a witness, having been duly sworn, was examined and testified as follows:
THE COURT: Before we start, Mr. New-lander, let the record show that this is the evidentiary hearing apparently — I say “apparently” because it’s hard to tell what the Court of Appeals wants, but this is the evidentiary hearing apparently ordered by the Court of Appeals in its decision dated November 19, 1981, wherein they affirm— what did they do, again? It’s hard to tell. They say that the judgment is affirmed as to Donn’s claims of false information in sentencing and inábility to see the presentence report before sentencing, yet they say as to the claim of ineffective assistance of counsel — and counsel, Mr. Jan Handzlik, who was counsel at the time of the sentencing, is present; correct, sir?
MR. HANDZLIK: Yes, your Honor.
THE COURT: All right. You can come up to the bar of this court.
MR. HANDZLIK: This is fine here, if that’s all right with the Court. I am comfortable here, if that’s all right with the Court.
THE COURT: If you can hear everything.
MR. HANDZLIK: Yes.
THE COURT: As to the claim of ineffective assistance of counsel, the judgment is reversed. That was my judgment denying the 28 U.S.Code 2255 motion, and it was remanded for an evidentiary hearing. And if I read the whole opinion, it seems to say that although the conviction of Donn is affirmed, the claim of false information and inability to see the sentencing report, they claim — the decision seems to say I have got to conduct an evidentiary hearing that includes those two facets of alleged ineffective assistance of counsel, that is, failure of counsel to show the defendant the presentence report and have him read the presentence report and failure to advise him as to what items he could bring to the Court’s attention that are misleading and let him rebut them. I don’t know what else I can do. Has anybody got any other suggestion? I’m talking to counsel for the government or counsel for the defense, Mr. Mink.
MR. MINK: Your Honor, I have read the opinion many times. It’s very confusing. But the way I understand it, basically what the Court has said with this decision — I think the Court said that the failure to show a client a presentence report so he knows what it is, he can read it, understand it, and have an opportunity to rebut at the hearing any false information contained in the report, that that would constitute ineffective counsel. It then—
THE COURT: Yet they say it’s affirmed on that basis.
MR. MINK: Well, I think they said — it’s confusing, but I think they show it would be affirmed if he had shown it to his client. If he hasn’t, then I think we go on. Your Honor, if I might say, part two of it is that if the — there is a double burden. The second half of it is to show that there was material false information contained in the report. We have to cover two aspects at this hearing. If the Court finds out that Mr. Donn had ineffective counsel because of failure to show him the presentence report and so forth, and if it contained false information, then the Court can determine whether or not this false information was such that it might have considered a lesser sentence.
THE COURT: Well, what I don’t understand about it is this: The rule says you only have to show it to the defendant “or” his attorney. Note “or” his attorney. So I don’t know where Choy, Kashiwa, and Norris get this business that it’s got to be both the attorney and the defendant. It would seem to me they are fouling their nests up there. And I don’t care if they know I said it or not. It’s ridiculous. If you look at the rule, what does the rule say? Rule 16, isn’t it? Or is it 32? Anybody know? Get me the Criminal Rules. Let's see.
MR. ROBERTSON: It’s Rule 32, your Honor.
THE COURT: What does it say?
MR. ROBERTSON: Section (3)(A).
THE COURT: Rule 32(c): “Presentence investigation.” Rule 32(c), subdivision (3)(A) says: “Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the presentence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons; and the court shall afford the defendant or his counsel — ” note the disjunctive all the way through “ — an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.”
Now, this opinion, as I read it — and it’s something we are going to be discussing, I should add, down at the workshop down in San Diego starting tomorrow where we have a session pointing out ludicrous opinions of the Ninth Circuit or opinions from which no sense can be made, and this is one of them. I am going to do everything I can in my power to make sure that they know what I think of it. It’s terrible. It doesn’t make any sense, but we will follow it, until it’s been reversed or overruled. I tried to get the U.S. Attorney to get an en banc hearing on it, but they didn’t do it for some reason. I don’t know why. But at any rate, as I see it, I think defense counsel is right. I have got to hold an evidentiary hearing to determine whether there was ineffective assistance of counsel, in that, number one, defense counsel at that time, Mr. Handzlik, didn’t show the presentence report to the defendant. Now, why I have to do that when the rule doesn’t provide for that — the rule just provides for the presentence report to go to either the defendant or his counsel, but they apparently don’t read the English language the same way I do. When I see a disjunctive, it means “either/or.” And once again, who was it? Choy, Kashiwa, and Norris. Secondly, it’s got to include, as I see it,- a determination of whether there is misleading information in the probation and sentencing report; and, thirdly, did the Court, if there be such misinformation, rely upon it in imposing the sentence? That is the hearing we are about to conduct.
Now, Mr. Newlander, will you please state your full name for the record. You have been sworn.
THE WITNESS: Ira Newlander.
THE COURT: And were you the reporter at the sentencing of the defendant here, Mr. Donn, on January 15, 1979?
THE WITNESS: Yes, your Honor, I was.
THE COURT: Now, have you had transcribed any portion or all of that hearing?
THE WITNESS: As to that hearing, I have a full and complete transcript before me.
THE COURT: That includes the colloquy between the Court and counsel and the defendant before sentencing as well as the sentencing?
THE WITNESS: Yes, your Honor.
THE COURT: What was it the U.S. Attorney said it didn’t include?
MR. ROBERTSON: Your Honor, I don’t recall — maybe I’m mistaken, but I don’t recall telling the Court that it didn’t include anything.
THE COURT: I thought you said it didn’t include the sentencing.
MR. ROBERTSON: No, your Honor. This morning — strike that. A few minutes ago I told the Court that there was a transcription of the sentencing proceedings made this morning but that there was not a transcription of the guilty plea, but that Mr. Newlander was present and that he could read.
THE COURT: Oh, the guilty plea.
MR. ROBERTSON: That’s correct.
THE COURT: Well, I don’t know that this evidentiary hearing — they didn’t say that I had to hold an evidentiary hearing as to whether he pled guilty.
MR. ROBERTSON: Your Honor, it did not go to the issue of whether or not Mr. Donn pled guilty, but the thought that I had on the matter as well as, I believe, Mr. Handzlik and other people was that .perhaps a transcription of the guilty plea would have shown whether or not at the time that Mr. Donn pled guilty there was any indication on the record either from Mr. Donn or perhaps from Mr. Handzlik at that time as corroboration as to whether or not in fact there had been any discussion of meritorious defenses, such as being under the influence. In the Court’s recent interpretation of the opinion, what I had prepared to do was — in addition to the other things the Court brought up, I was prepared to discuss whether or not Mr. Handzlik had investigated with the defendant, Mr. Donn, whether or not he had a valid defense of being intoxicated at the time of the bank robbery. If the Court has determined that that is not really—
THE COURT: That’s not raised in the opinion, is it, anywhere at all?
MR. ROBERTSON: It is raised in the opinion, your Honor.
THE COURT: Where? He was intoxicated when he pled guilty or he was intoxicated when he committed the offense?
MR. ROBERTSON: At the time of the offense, your Honor.
MR. MINK: Page 5718, the second paragraph in the right-hand column, there is some indication.
THE COURT: Well, then, I suppose if we are going to conduct a hearing, then it should cover more than just the two issues I mentioned. Yes. On page 5718 of the slip opinion, it says: “The alleged ineffective assistance of Donn’s counsel consisted in not fully discussing the merits of Donn’s case with him, not investigating the case, not informing Donn that intoxication might be a defense — ” and then in a footnote they say Donn alleges that he was under the influence of alcohol and angel dust when he robbed the bank “ — and not showing Donn a copy of the presentence report containing false information. These allegations are not clearly — ” “ — not clearly without merit.” There is that double negative business that a lot of courts use when they can’t figure out how to decide a case. “In particular, a defense counsel’s failure to show his client the presentence report falls below the standard of reasonably competent representation,” even though it abides by Rule 32(c)(3). “If the report contained materially false information that the trial court relied on in sentencing, the failure to show it to Donn clearly was prejudicial.”
Now, maybe if the allegations of ineffective assistance of Donn’s counsel include these things that the court says, and they say I should conduct an evidentiary hearing to determine the claim of ineffective assistance of counsel, I guess you are right, that we have to cover those things. So Mr. Newlander, do you have a copy of your notes with respect to the plea of guilty? And the date of the plea of guilty, as I recall it, was on December 19, 1978 at 2:30 p.m. There was a change of plea from not guilty to guilty, at which time I took the plea and I set the probation hearing and sentencing for Monday, January 15, 1979 at 2:00 p.m.
Do you havé your stenographic notes for December 19, 1978 when the plea of guilty was taken?
THE WITNESS: I do, your Honor.
THE COURT: All right. We will cover that, and I will make my findings with respect to the allegations other than those connected with the presentence report. It appears to me there are two items up for discussion in this evidentiary hearing on ineffective assistance of counsel inasmuch as it relates to the presentence report: Number one, was it shown to the defendant? Number two, was there misleading information in it? Did the Court rely upon that? Well, perhaps three.
Now, let’s take up the assistance of counsel at the time of the plea of guilty, since that is raised here in this opinion. Whether it’s covered or not, I don’t know, but let’s cover it just in case. When it goes back, the court will know that we,did cover it because we thought that they covered it.
Read your stenographic notes now of the plea of guilty on December 19, 1978.
THE WITNESS: (Reading:)
“The Court: All right, Mr. Donn. Will you approach the podium there with your counsel.
“Mr. Handzlik: We have provided a signed statement of rights.
“The Court: Yes. I see that. All right.
“Will you take the plea, Mr. Clerk.
, “The Clerk: Is Aron Edward Donn your true name?
“The Defendant: Yes.
“The Clerk: How do you now plead to the indictment, guilty or not guilty?
“The Defendant: Guilty.
“The Court: All right. Mr. Donn, it is my duty to ask you a number of questions to determine if your guilty plea is your free and voluntary act. Would you please be sworn for this purpose.”
And the defendant was thereupon duly sworn, your Honor.
THE COURT: All right.
THE WITNESS: (Continuing:)
“The Court: All right. Do you understand that at this time you have a constitutional right to be warned as follows: At all times — and this includes, of course, the time since your arrest on this charge to _ which you have pled guilty. You have had the rights as follows: You don’t have to say anything. You can remain silent. Anything you say will be used against you. You are entitled to be represented by an attorney at all stages of the proceedings, including this one, and if you don’t afford — or if you can’t afford a lawyer, one will be appointed for you. Do you understand these rights?
“The Defendant: I do, your Honor.
“The Court: Mr. Handzlik has been appointed for you as your attorney. Is that correct?
“The Defendant: Yes, your Honor.
“The Court: And did you make any statements, admissions, or confessions without having been warned of these rights ahead of time?
“Mr. Handzlik: May I speak to the defendant, your Honor?
“The Court: Yes.
“The Defendant: Yes, your Honor.
“The Court: Did you make any statement or confession without having been warned of these rights before you made the confession or statement?
“The Defendant: No, your Honor.
“The Court: All right. Now, you have read the charge against you, have you not?
“The Defendant: Yes, your Honor.
“The Court: And you understand that this charge to which you are pleading guilty — to which you have pled guilty is that on or about October 11, 1978 in the Central District of California you, by force, violence, intimidation, knowingly took from victim teller Tommie Mae Gatlin $453 belonging to and in the care, control, custody, and management — ” and I have the name of the bank, your Honor “ — 7060 Sepulveda Boulevard, Van Nuys, California.”
THE COURT: Well, the name of the bank, let’s get it in there so the record is clear. It’s Bank of America at 7060 Sepulveda Boulevard, Van Nuys, California. Is that in your notes there?
THE WITNESS: Yes.
(Continuing:)
“Whose deposits were then and are insured by the Federal Deposit Insurance Corporation. Do you understand that?
“The Defendant: Yes, your Honor.
“The Court: And those are the — those are the ones to which you have pled guilty; right?
“The Defendant: Yes, your Honor.
“The Court: Now, has your attorney, Mr. Handzlik, done everything you could expect him to do in your behalf and in your defense?
“The Defendant: Yes, your Honor.
“The Court: Is there anything you are unhappy with or dissatisfied with that he has done in his advice to jou?
“The Defendant: None, your Honor.
“The Court: All right. Do you understand that by pleading guilty you are giving up the right to a jury trial? We have already picked a jury, of course, in this case, but you are giving up that right, the right to a jury trial, and we will go ahead with your plea, and if I find it is freely and voluntarily made, we will set a date for consideration of the probation report and sentencing. But do you understand that by pleading guilty, you are giving up the right to a jury trial and the right to trial by Court without a jury, waiving the jury, and a finding of the Court of guilty or not guilty? And you are also giving up the right to cross-examine and confront witnesses against you and you are giving up the right to present evidence and witnesses in your own behalf and you are also giving up the right not to be compelled to incriminate yourself under the Fifth Amendment to the Constitution. Do you understand that?
“The Defendant: Yes, your Honor.
“The Court: All right. Do you know what the maximum — how old are you, by the way?
“The Defendant: 27.
“The Court: You are too old for the Youth Corrections Act.
“Do you know what the maximum punishment is that is provided by law?
“The Defendant: Yes.
“The Court: What is the maximum punishment?
“The Defendant: Yes.
“The Court: What is it, please.
“The Defendant: 20 years,
“The Court: Or?
“The Defendant: $5,000.
“The Court: Or both.
“The Defendant: Right.
“The Court: You understand that.
“The Defendant: Yes, sir.
“The Court: All right. Now, I have to determine if there is a factual basis for the plea. On that date that is charged in the indictment, were you in the bank?
“The Defendant: Yes, your Honor.
“The Court: And you went up to a victim teller, is that it — I take it.
“The Defendant: Yes, your Honor.”
THE COURT: “Is that correct” I think.
THE WITNESS: (Continuing:)
“The Court: Did you have a gun?
“The Defendant: No.
“The Court: Did you give her a note? Or did you talk to her?
“The Defendant: It was a note, your Honor.
“The Court: What did the note say?
“The Defendant: Just scribbling on it. It was—
“The Court: Give me—
“Mr. Handzlik: Scribbling.
“The Defendant: There was no words indicated.
“Mr. Handzlik: He said ‘scribbling.’ He said just scribbling on it.
“The Court: Well, did it have something to the effect ‘Give me your money’?
“The Defendant: It didn’t have nothing but scribbling on it.
“The Court: Just scribbling. All right. But then after you handed it to her, did she turn over the money to you?
“The Defendant: Yes.
“The Court: And you took it out, didn’t you, and used it for your own benefit?
“The Defendant: Yes, your Honor.
“The Court: You knew that was wrong and constituted a robbery of the bank? Is that correct?
“The Defendant: Yes, your Honor.
“The Court: All right. Thank you.”
The U.S. Attorney said: “Your Honor, excuse me. May the Court inquire of the defendant what he said to the teller to obtain the'money?
“The Court: He said he gave her a note.”
The U.S. Attorney, Assistant U.S. Attorney: “He said there was scribbling on the note. I think he made some verbal demand.
“The Court: What did . you say to the teller?
“The Defendant: I showed her a note and just gave her a bag.
“The Court: Just what? Gave her a bag?
“The Defendant: I showed her a note and gave her a bag.
“The Court: All right. A bag. Did you tell her to put the money in it?
“The Defendant: Put the money in it, yes.
“The Court: All right. Thank you.”
The U.S. Attorney said: “Thank you.
“The Court: Has any officer or agent of the government or anybody else used any violence, any force, violence, or coercion against you or any member of your family to get you to enter into a guilty plea?
“The Defendant: No, your Honor.
“The Court: Have there been any promises of reward, leniency, special sentence, lighter sentence, any particular sentence—
“The Defendant: No, your Honor.
“The Court: —or special treatment if you would plead guilty?
“The Defendant: No, your Honor.
“The Court: All right. Do you understand I am asking you all these questions not to pry into your private life or humiliate you in any way, but I just have to find out if your plea is free and voluntary. Do you understand that?
“The Defendant: Yes, your Honor.
“The Court: All right. Are you under a doctor’s care today, suffering from any physical or mental illness affecting your ability to make decisions in the most important of your own affairs?
“The Defendant: No, your Honor.
“The Court: Have you taken any drugs, narcotics, stimulants, depressants, liquor, or marijuana of any kind in the last 24 hours?
“The Defendant: No, your Honor.
“The Court: Once again, I am asking you these questions to make sure your mind is clear and that you are pleading guilty freely and voluntarily and of your own accord. Is that true?
“The Defendant: Yes, your Honor.
“The Court: Does counsel represent he has conferred at length with the defendant, who is pleading guilty with his advice and consent and freely and voluntarily?
“Mr. Handzlik: Yes.
“The Court: And with a full understanding of the nature of the charges and consequences of the plea?
“Mr. Handzlik: Yes, your Honor.
“The Court: Or the possible consequences of the plea. All right. With those representations, the Court, having carefully questioned the defendant to determine if his guilty plea is freely and voluntarily made and having examined the defendant’s demeanor and observed the defendant’s demeanor, attitude, and intelligence while answering the questions, the Court finds the defendant is free of any coercive influence of any kind and that he is pleading guilty because he actually committed the offense charged and for no other reason, it is therefore ordered that the guilty plea is determined to be freely and voluntarily made with an understanding of the nature of the charges and consequences of the plea. The defendant is hereby convicted upon his plea of guilty. We will set a probation hearing and sentencing for about three weeks hence. Well, any time counts. Let’s see. Today is the 19th. We will set it on the 15th.
“Mr. Handzlik: That’s fine, your Honor.”
There was some discussion of scheduling. Then the Court said: “Now, a couple of final things, Mr. Donn. You have signed a document here ‘Statements made to the Court by defendant after a plea of guilty.’ Is every answer true and correct to the best of your knowledge and belief?
“The Defendant: Yes, your Honor.
“The Court: All right. One final .thing. I want to say this, Mr. Donn. Your demeanor and attitude while answering the questions has been, in my view, exemplary. I want to suggest to you that that’s the way to be in court, to act in court, and I thank you for your courtesy to the Court in this connection. I just wanted to say it, because I just saw some activity that I didn’t like before, but I think that the way you behaved yourself here is very impressive to the Court, so I urge you to get together with the probation officer and when you do, tell him all the good things about yourself and get letters, if you can, from any responsible people in the community, people in the community where you live or any friends or relatives. Get letters in your behalf, because I want to know all the good things about you, and so I can make an order now that the defendant is recommitted and that the Marshals will make him available down in the lockup, if you will, please, down there to the probation officer and get it started.”
THE COURT: All right. Do we have a transcript that you have dictated and have transcribed, Mr. Newlander, of the probation hearing and sentencing?
THE WITNESS: I have it in front of me, your Honor, yes.
THE COURT: You have it. May I see it?
This is dated January 15, 1979, and I take it it’s true and correct to the best of your knowledge and belief.
THE WITNESS: Yes, your Honor.
THE COURT: All right. Is there any further questioning desired, of the court reporter?
MR. ROBERTSON: None for the government, your Honor.
MR. MINK: No questions, your Honor.
THE COURT: Thank you, Mr. Reporter. All right. You are excused. Thank you for coming down. I appreciate it.
THE WITNESS: Glad to be of help, your Honor.
THE COURT: Thank you. That’s the evidentiary hearing with respect to the time of plea of guilty.
Now, I find nothing whatsoever to indicate that the merits of the case were not fully discussed with the defendant before he pled guilty, that the case was not thoroughly investigated by Mr. Handzlik, his attorney, or anything at all indicating that the defendant did not discuss with his attorney possible pleas of not guilty based upon a defense of intoxication. Now, I think in order to complete that part of the case, that is, all of the efforts made by counsel prior to the plea of guilty should be examined at some length. Mr. Handzlik, will you take the stand, please, and be sworn. Let’s hear what you have to say about it and then about the activities prior to the plea of guilty.
MR. HANDZLIK: Yes, your Honor.
THE COURT: Then we will allow the defendant, if he wishes to, to take the stand and tell what he says you did, then I will have to make a decision as to whether or not there was effective assistance of counsel up to and through the plea of guilty.
MR. HANDZLIK: Yes, your Honor.
THE COURT: All right. Would you please be sworn for this purpose.
JAN LAWRENCE HANDZLIK, called as a witness, being first duly sworn, was examined and testified as follows:
THE CLERK: Please be seated.
Would you please state your full name for the record and spell your last name.
THE WITNESS: Jan Lawrence Handzlik, H-a-n-d-z-l-i-k.
THE COURT: Let me ásk you these questions, then counsel can examine you. Did you discuss with Mr. Donn the merits of his case before you advised him — or advised with him and he decided to plead guilty?
THE WITNESS: Yes, your Honor.
THE COURT: What did you do in that connection?
THE WITNESS: I reviewed the report prepared by the FBI in connection with the bank robbery that Mr. Donn was accused of. I read those 302’s by myself and then in conjunction with Mr. Donn, and we discussed any possible defenses that he might have.
THE COURT: Did he read those FBI reports?
THE WITNESS: He read some of them. In particular, he read the FBI 302 which contained his own confession.
THE COURT: I see. All right. And was he warned • of his rights before the confession?
THE WITNESS: Yes, he was.
THE COURT: And he saw that?
THE WITNESS: Yes, your Honor. And we also have had a Jackson v: Denno hearing in this courtroom.
THE COURT: Yes. I remember that. And he admitted he signed the rights form—
THE WITNESS: Yes, your Honor.
THE COURT: —of the FBI. All right.
THE WITNESS: At that time, we discussed whether or not Mr. Donn could raise the defense of having been under the influence of either alcohol or some drug. It was indicated in Mr. Donn’s confession and statement to the FBI that at the time of the robbery, Mr. Donn had taken some drugs and had some alcohol. I questioned Mr. Donn at that time about whether or not he could remember what took place on the day of the robbery, what led up to the robbery, what happened during the robbery, what happened after the robbery, even though he had apparently ingested some alcohol and some substance, some drug. He told me that he could remember what had happened during the robbery and the fact that he had taken drugs and perhaps alcohol did not have an effect upon him knowing or not knowing what he was doing at the time of the robbery. I recall pointing out to him that in his statement to the FBI, he gave a rather detailed description of what had taken place during the robbery at the same time that he had told the agents that he had had alcohol and drugs and he said—
THE COURT: Do you have a copy of that report?
THE WITNESS: .1 have a copy of the statement he made to the FBI, yes.
THE COURT: May we have it? We will mark it as an exhibit in this evidentiary hearing.
THE WITNESS: Yes, your Honor.
THE COURT: Unless we have another copy so that he doesn’t have to tear up his file.
MR. ROBERTSON: Your Honor, I have a copy. I was going to give it to Mr. Mink.
THE COURT: Well, I’m sure that the defense has one, too.
Mr. Mink, you have seen it, haven’t you?
MR. MINK: No, I haven’t.
THE WITNESS: I will give the Court my copy.
THE COURT: All right. Let me have your copy, and you let the defense attorney have your copy, Mr. Robertson.
THE WITNESS: The statement of Mr. Donn is found at pages 20, 21, and 22 of the FBI report.
THE COURT: All right. Mark it as Exhibit 1, Mr. Clerk, Court’s Exhibit 1 in connection with this hearing, this evidentiary hearing, in evidence at this evidentiary hearing. Any objections?
MR. ROBERTSON: No objection.
THE COURT: All right. Hearing none, in evidence. All right. Go ahead.
THE WITNESS: Beyond that, your Hon- or, I simply satisfied myself through discussions with Mr. Donn and through a reading of the FBI report that' Mr. Donn was fully aware of what he was doing at the time of the robbery and that his voluntary intoxication, either on alcohol or drugs, would not form the basis of a valid defense to the charges. I also took into consideration the fact that bank robbery is not a specific intent crime and thus we did not have a situation where the voluntary intoxication would have served to rebut or somehow defeat the claim of specific intent, but nevertheless, it was my conclusion at that time that Mr. Donn fully understood what he was doing at the time that he did it and that he intended to do what he did with regard to the bank robbery.
THE COURT: All right. Anything else that you want to tell us about your assistance as counsel up to and including the plea of guilty?
THE WITNESS: With regard to the plea of guilty, your Honor, there is really nothing further. I do feel that we discussed everything quite fully.
THE COURT: All right. Examination by the government.
MR. ROBERTSON: Your Honor, at this time I don’t think there is anything I can add to Mr. Handzlik’s statements.
THE COURT: All right. Examination by defense counsel.
MR. MINK: Yes, your Honor.
CROSS-EXAMINATION
BY MR. MINK:
Q. Mr. Handzlik, how many times did you meet with Mr. Donn?
THE COURT: Just one second. We better recess at this point for a few minutes while Judge Curtis takes a jury verdict. I will ask all the parties to remove your papers. I don’t see any reason why you can’t sit in the spectator section, if Judge Curtis will permit it, and then we will resume as soon as he has received a verdict and recessed his case.
MR. HANDZLIK: Your Honor, I have an appearance before Judge Takasugi at 3:30 concerning an arraignment and plea in a five-defendant case.
THE COURT: We will let you go to that. Why don’t you go down there now. Maybe he can hear it now.
MR. HANDZLIK: I will try, your Honor.
THE COURT: Then come back.
(Short recess.)
THE COURT:' Mr. Handzlik, will you resume the stand, please.
THE WITNESS: Yes, your Honor.
THE COURT: Examination by defense counsel in connection with the plea of guilty.
BY MR. MINK:
Q. Mr. Handzlik, how many times did you meet with Mr. Donn prior to entering his plea?
A. I would say—
Q. Excuse me. His plea of guilty. I understand there was an earlier plea of not guilty, was there not?
THE COURT: Well, the file shows that on December 19, 1978 it was called for a jury trial, so he must have pled not guilty.
THE WITNESS: It was on November 13, your Honor.
THE COURT: Yes, November 13. All right. I have the minutes here, and I set it for trial on December 19th, at which time he changed his plea to guilty. All right.
THE WITNESS: My records show that including December 19th, I had met with Mr. Donn on three occasions. The first was on November 13th, the date that I was appointed. I had a conference with Mr. Donn.
THE COURT: That’s 1979?
THE WITNESS: 1978, your Honori Excuse me.
THE COURT: ’78. All right.
THE WITNESS: On December 7th, a conference with Mr. Donn. I may have had a conference with Mr. Donn on December 18th, and then I did meet with and discuss the case with Mr. Donn on December 19th, the date set for the beginning of trial or the date upon which Mr. Donn entered a plea of guilty.
BY MR. MINK:
Q. In the facts you previously testified to on direct, the matters which came to your knowledge, did they come to your knowledge between the time of the entry of the not guilty plea and the later withdrawal of that plea?
A. Yes.
Q, Yes? Did Mr. Donn tell you at any of those meetings that he was a drug addict?
A. No, he did not.
Q. He did not. He did inform you that he was “stoned,” as he put it, at the time of the robbery?
A. To my recollection, Mr. Donn did not use the word “stoned”; however, in his statement to the FBI, I believe Mr. Donn had used the word “stoned.” Mr. Donn did tell me that he was “high” or had taken something prior to the time that the robbery was committed.
Q. Did he state to you that he was under the influence of these drugs to the point that he didn’t know what he was doing?
A. No, sir, he did not.
Q. Did you discuss with Mr. Donn at any of these meetings any possible defenses based on his condition at that time being under the effect of drugs or alcohol?
A. Yes, I did.
Q. And it was your conclusion that defense would be unsuccessful?
A. That was my conclusion. I also discussed that with Mr. Donn and told him that I thought it would be unsuccessful.
THE COURT: What did he say?
THE WITNESS: I don’t, recollect, sir.
THE COURT: Did he demur?
THE WITNESS: Yes.
THE COURT: Did he say he still wanted to plead not guilty or did he agree with you and say he did remember things and he wanted to plead guilty?
THE WITNESS: He told me that he remembered what happened during the robbery, before, during, and after the robbery, that he agreed with my assessment that he would not be found not guilty during the trial, and we discussed it to that extent, your Honor.
THE COURT: All right.
THE WITNESS: I don’t recall specifically what he said, and that was my response to the question.
THE COURT: No. But just as best you recall what he said.
THE WITNESS: Yes, sir.
BY MR. MINK:
Q. Mr. Handzlik, did Mr. Donn make an independent determination to plead guilty? Was that his decision?
A. Yes.
Q. Did you advise him to plead guilty?
A. I advised him that the best thing to do in this case would be to enter a plea of guilty, yes.
Q. Did you pursue any independent investigation prior to your advising Mr. Donn to plead guilty?
A. My review of the FBI reports, the discovery material furnished to me, and my conversations with Mr. Donn constituted my independent investigation.
Q. Did you interview any of the witnesses to the crime?
A. No, I did not. I will say, though, sir, that none of the statements made by the witnesses to the FBI as found in the discovery material indicated to me that they observed that Mr. Donn was under the influence of drugs or alcohol.
THE COURT: You say none of them did?
THE WITNESS: To my recollection, none of the witnesses in the bank said anything that would indicate that Mr. Donn was under the influence of anything.
THE COURT: All right.
BY MR. MINK:
Q. Did any of the reports contain any statements regarding the teller at the Bank of America believing that Mr. Donn was under the influence of any drugs or alcohol?
A. My recollection is now that there were no such statements.
Q. The FBI report indicates that Mr. Donn stated that he was — I think the word is “stoned.” Did you discuss with Mr. Donn whether or not he was stoned after you had reviewed that report?
A. I discussed what he meant by it and in what condition he was at that time,
Q. What did he say he meant by the word “stoned”?
A. He said that he had taken a drug. I don’t recall what — as I sit here now, I can’t recall what drug, if any, he told me that he took, but he did say that he had taken some drugs and that he was either “high” on them or feeling their effects to some extent.
Q. Did you review with Mr. Donn the contents of the FBI report and the other matters which you reviewed?
A. Yes.
Q. Did he read them? Did you present them to him to read them?
A. I gave Mr. Donn the opportunity to read them. I can’t recall today whether or' not he actually read each one of the 302 reports.
Q. In connection with advising him to plead guilty, did you discuss with him the contents of each of these reports, the ones you referred to in your direct examination?
A. Well, sir, I cannot say and I don’t recall discussing with him the statements made by each and every witness to the bank robbery. We certainly discussed them in a general sense, such as so-and-so is going to say the following and this is the evidence the government has and a recitation of that evidence, but I can’t say that I discussed each specific statement with Mr. Donn. I don’t recall that.
Q. Is it your testimony that Mr. Donn was aware of the possibility of a defense based upon his physical condition?
A. Yes.
Q. And it was his choice after discussing it with you to waive that defense and to plead guilty?
A. Yes.
MR. MINK: I have no further questions.
THE COURT: All right. That will end the hearing on the questions raised at the time of the guilty plea.
MR. MINK: Your Honor, Mr. Donn would like to testify in regard to—
THE COURT: Unless you want to have him testify.
MR. MINK: Your Honor, I could as to part two do it at the same time if the Court wants to put him on now, and then again later.
THE COURT: Let’s do them separately, because they are two separate things, and I can’t figure out from this Court of Appeals whether the hearing we have now in connection with the plea of guilty is what they have in mind by “ineffective assistance of counsel,” so you better put on any evidence anybody has on either side on this issue, what I will call the first evidentiary hearing.
MR. MINK: Thank you, your Honor.
THE COURT: All right. Step forward and be sworn.
ARON EDWARD DONN,
called as a witness on behalf of the defense, having been first duly sworn, was examined and testified as follows:
THE CLERK: Please state your name for the record and spell your last name for the record.
THE WITNESS: Aron Edward Donn, Do-n-n.
DIRECT EXAMINATION
BY MR. MINK:
Q. Mr. Donn, I am going to ask you some questions regarding your relations with your counsel up to the time that you pled guilty. We will get to the other issue of the presentence report later.
Now, you heard counsel’s testimony just now and a few minutes before. Is his testimony correct? Is what he said true?
MR. ROBERTSON: Objection, your Honor. The question is ambiguous. There is quite a bit of testimony there.
THE COURT: Overruled. Is the testimony correct? Answer yes or no.
THE WITNESS: Partially.
THE COURT: All right. What part isn’t?
THE WITNESS: Well, upon seeing me the first time, Mr. Handzlik asked me a few questions. He asked me how was I doing, did I need any change to make a phone call and how do I plead. I told him I’d like to plead not guilty. He told me after him reading the report from the FBI agent that he felt that I had no type of defense whatsoever, and then this is why I pled not guilty and later on when I chose to—
THE COURT: He showed you the confession you made, didn’t he?
THE WITNESS: Yeah. Well, I made a confession, yeah. True. But yet still at the same time I told him at the time that I was under the influence of PCP and alcohol when I committed the crime.
THE COURT: And he showed you all these witness statements of the FBI, all these reports, and told you in brief what they said, that the witnesses would say you weren’t under the influence of anything and that you came in and held up the bank. Didn’t he tell you that?
THE WITNESS: No, he didn’t tell me that.
THE COURT: He showed them to you, didn’t he?
THE WITNESS: He gave me a—
THE COURT: A bunch of papers.
THE WITNESS: He gave me a bunch of papers and that was—
THE COURT: From the FBI.
THE WITNESS: And took them right back from me. I didn’t get to read the material. I just scanned through it.
THE COURT: Why didn’t you read it?
THE WITNESS: Because he took them back from me.
THE COURT: All right.
BY MR. MINK:
Q. How much time did counsel spend with you?
A. Around four to five minutes.
Q. How many occasions did you meet with him?
A. Twice at L.A. County Jail and once when I was going to court here on the 19th when I pled — when I retook my not guilty plea back and became — and said I was guilty and changed it to guilty.
THE COURT: Why did you answer my questions at the guilty plea the way you did? You admitted everything. What’s the matter with you? You weren’t under the influence of any drugs at that time, were you? At least you swore to me that you weren’t, didn’t you?
THE WITNESS: (No audible response.)
THE COURT: Speak up.
THE WITNESS: I’m talking about when I committed—
THE COURT: Didn’t you swear to me that you were not under the influence of any drugs or narcotics—
THE WITNESS: Within 24—
THE COURT: —or liquor or marijuana of any kind?
THE WITNESS: Within 24 hours.
THE COURT: That’s right. And your mind was clear.
THE WITNESS: Yes. But at the time of the crime, I was under the influence of PCP.
THE COURT: You swore to me your mind was clear; right? And then you gave me the details of how you committed the offense. Remember that? Just as it was read—
THE WITNESS: Yes.
THE COURT: —by the reporter.
THE WITNESS: Yes.
THE COURT: All right. Go ahead.
MR. MINK: Thank you, your Honor.
Q. Mr. Donn, prior to pleading guilty, did you discuss your plea with counsel?
A. Yes, I discussed it with him.
Q. Did you tell him that you were under the influence of PCP or alcohol at the time of the robbery?
A. Yes, I did.
Q. Did he discuss with you any possible defense which might be raised based on those facts?
A. No.
Q. Did you have an opportunity to read the FBI report and the other reports?
A. I never knew nothing, that a presentence report existed.
THE COURT: No. He didn’t ask you that.
THE WITNESS: No. I never read the—
THE COURT: The FBI reports.
THE WITNESS: All right. The FBI reports?
BY MR. MINK:
Q. Yes.
A. Can you rephrase the question? Can you say it again?
Q. I was just wondering if counsel gave you an opportunity to read the FBI report prior to your plea.
A. Briefly.
Q. Briefly. Did you tell the' FBI that you were stoned at the time of the robbery?
A. Yes, I did.
Q. Did you tell your counsel that?
A. Yes, I did.
Q. Was it based upon his advice that you pled guilty?
A. Yes.
Q. Were there any discussions at all regarding the defenses which you might have to this case?
A. No. There was never no discussion.
Q. No discussion at all as to any possible—
A. He just told me if I was found guilty, I could be given a limit of 20 years and he says he had no defense, the fact that — you know, to the fact — the charge that I was being held against, and he said it would be best to my interest if I threw myself upon the mercy of the Court and pled guilty by taking my not guilty verdict back when I had picked a jury, but when the jury went in, he told me I think it would be best if you were to change your plea to guilty, because if you are found guilty, you can be given 20 years, and that scared me. He said he had no defense for me, so I took my not guilty plea back and pled guilty and did as he said because—
THE COURT: You said that before. Let’s get on to something else.
BY MR. MINK:
Q. Were you in fact under the influence of- drugs at the time of the robbery?
A. Yes.
THE COURT: That’s been asked and answered. Objection sustained. Let’s get on with it.
MR. MINK: I have no further questions, your Honor.
THE COURT: All right. Nothing further from the government.
MR. ROBERTSON: Your Honor, I have a couple of questions.
THE COURT: What do you want to do?
MR. ROBERTSON: I have nothing, your Honor.
THE COURT: Step down.
The Court finds that the attorney, Mr. Handzlik, exercised very, very diligent effort on behalf of this defendant both before and during the time that he pled guilty, both by the investigation, by the research done on the FBI reports and on the man’s confession to the FBI and by his discussion with the man and presenting the reports of the witnesses to the man even though he says “briefly.” I prefer to believe Mr. Handzlik. I think the defendant is a- liar and a perjurer.
All right. We will take up the next hearing. This is the hearing on sentencing day. I have got a copy of the sentencing memorandum. I don’t know'whether that was ever taken before the Court of Appeals. Was it?
MR. MINK: This transcript, your Hon- or?
THE COURT: That’s right.
MR. MINK: No, your Honor. It wasn’t prepared until this morning.
THE COURT: So the Court of Appeals didn’t even know what happened at the time of sentencing. Talk about a booby decision, this is it. I can’t understand that the court would talk about the failure to give effective assistance of counsel without at least a copy of the sentencing report and a copy of the transcript of the hearing at the guilty plea. I just don’t understand it. And I’ll tell Norris that and I’ll tell Choy that, too. They may be senior in some respects to me, but I’m senior to them in others. Neither one of them ever tried a case. They don’t know what they are talking about.
AH right. Let’s get on with this.
JAN LAWRENCE HANDZLIK,
recalled as a witness, having been previously duly sworn, resumed the stand and testified further as follows:
THE COURT: This is the hearing on the question of whether or not you properly represented the defendant at the time of sentencing. Now, let me ask you this, Mr. Handzlik: Have you read this transcript?
THE WITNESS: Yes, your Honor.
THE COURT: Is it true and correct—
THE WITNESS: To the best of my knowledge.
THE COURT: —with respect to the sentencing?
THE WITNESS: Yes, sir. .
THE COURT: All right. Was the testimony of the reporter with respect to the questions asked of the defendant at the time of the plea of guilty true and correct?
THE WITNESS: Yes, sir.
THE COURT: All right. Do you want to add anything to your efforts with , respect to the defendant at the time of sentencing?
THE WITNESS: Your Honor, if I understand what the Ninth Circuit' said in their opinion, they stated that it was ineffective assistance of counsel to not have shown a copy of the presentence report to the defendant.
THE COURT: That’s one point they raise, right. The second point they raise is that if there was misleading information in it, was he allowed an opportunity of rebuttal. All right. Go ahead.
THE WITNESS: With regard to the first point, on the day of sentencing, I reviewed the presentence report in the Probation Office, as we must do, because we are not permitted to remove the presentence reports from the Probation Office. I made notes in the Probation Office.
THE COURT: You are given a copy of the probation report here if you want it.
THE WITNESS: Yes, your Honor. And when I came—
THE COURT: Whenever it’s asked for.
THE WITNESS: And when I came to court, your Honor—
THE COURT: You got a copy of it, did you not?
THE WITNESS: That’s correct. Yes, I did. And I gave it to Mr. Donn.
THE COURT: I always insist that my law clerks give a copy of every presentenee report to the attorney for the defendant in every case before sentencing, before I even come out for sentencing. You got it.
THE WITNESS: I did.
THE COURT: What did you do with it?
THE WITNESS: I briefly looked at it again and I gave it to Mr. Donn for him to review.
THE COURT: What did he do?
THE WITNESS: He read it — or he read portions of it. I can’t say that he read the whole thing.
THE COURT: Well, he had it in front of him?
THE WITNESS: Yes, sir.
' THE COURT: Did he turn the pages as he read it?
THE WITNESS: Yes, sir. I think I told him prior to the time he began the review of the presentence report that he should look first at the evaluation section, which is at the end of the report, and then go back over the other portions of the report, such as his prior record.
THE COURT: All right. I put in front of you the original presentence report and ask you if that is the original of what you showed him.
THE WITNESS: Yes, your Honor, it is.
' THE COURT: Mark that as Court’s Exhibit 2. If the defendant doesn’t have a copy, hand him a copy from the government’s file.
MR.'MINK: We have a copy, your Hon- or.
THE COURT: You have a copy. All right. You must have had to get it up in the circuit, All right. You did show it to him and he read it.
THE WITNESS: He read portions, of it, your Honor.
THE COURT: Certainly he turned the pages as he read it.
THE WITNESS: Yes, sir. And he had the opportunity to read the entire thing.
THE COURT: You told him to read it?
THE WITNESS: I did, yes.
THE COURT: All right. Did you notice in here — did you bring to his attention this record that it showed?
THE WITNESS: I did, yes, your Honor.
THE COURT: Petty theft, burglary, joyriding, tampering with a vehicle, plain drunk, shoplifting, burglary, failure to disperse. Another one shows here, the one they complain about, 11-22-71, possession of dangerous drugs and burglary both. Do you remember that?
THE WITNESS: Yes, your Honor, I do.
THE COURT: You showed him that?
THE WITNESS: Yes.
THE COURT: And next is burglary, another burglary, and then under “Evaluation,” it says he has a hostile, belligerent attitude was surly and manipulative during the probation interview, amongst other things. You had him read that specifically, particularly?
THE WITNESS: Yes, your Honor.
THE COURT: What did you do after that?
THE WITNESS: Your Honor, with regard to the prior record, apparently I did not see in his prior record the fact that Mr. Donn had been convicted or . had entered a plea of guilty to the possession of dangerous drugs. In my notes on the presentence report, I simply list his adult record as involving primarily theft crimes, no drugs or narcotics crimes.
THE COURT: What notes do you have there?
THE WITNESS: I have one yellow sheet of paper that I—
THE COURT: Let’s see it a second.
THE WITNESS: These are my notes at the time that I was reviewing the presentence report.
THE COURT: With him? ‘
THE WITNESS: No. At the time that I was reading the presentence report up in the Probation Office.
THE COURT: All right. Then did you discuss these things with him?
THE WITNESS: Well, I had him read the prior — the other side of the page does not pertain to this case, I don’t believe. It’s legal research.
(Brief pause in the proceedings.)
THE COURT: That’s legal research you did in this case?
THE WITNESS: It may very well be, yes, your Honor.
THE COURT: Well, is it or isn’t it?
THE WITNESS: May I look, at it more closely, your Honor?
THE COURT: Yes. Because I want to make that part of the record, too, if you can identify it.
(Brief pause in the proceedings.)
THE WITNESS: As a matter of fact, this is research I did in connection with this case, and in particular, in connection with the admissibility of Mr. Donn’s confession. As I now recall, Mr. Donn was first arrested by state authorities, I believe, or at least taken into